Singh v Auckland District Health Board [2024] NZCA 224 (12 June 2024)

Last Updated: 17 June 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA185/2023 [2024] NZCA 224

	BETWEEN	JASBIR BALBIR SINGH Applicant
	AND	AUCKLAND DISTRICT HEALTH BOARD Respondent

Court:	Katz and Thomas JJ
Counsel:	Applicant in person R M Rendle and T J Bremmer for Respondent
Judgment: (On the papers)	12 June 2024 at 2.30 pm

JUDGMENT OF THE COURT

The application for review is declined.

REASONS OF THE COURT

(Given by Katz J)

• [1] The applicant, Dr Jasbir Balbir Singh, seeks a review of a costs order made by Gilbert J in a direction dated 21 September 2023.

Background

• [2] Dr Singh was employed by the Auckland District Health Board (the ADHB) from 9 December 2013 until her resignation on 25 February 2015.
• [3] Dr Singh filed a claim in the Human Rights Review Tribunal (HRRT) in 2016, alleging that she had been subjected to discrimination and harassment while employed by the ADHB.^[1] The ADHB applied to strike out the HRRT proceeding. The strike out application was set down for a one-day hearing, but Dr Singh did not appear. She subsequently contacted the HRRT and advised that she wished to withdraw her claim. On 8 February 2018, the HRRT accepted her withdrawal and dismissed her claim.^[2]
• [4] Almost four years later, on 14 January 2022, Dr Singh sought to pursue three parallel proceedings in the High Court concerning the same subject matter, namely:

(a) an application seeking leave to appeal the HRRT decision out of time (the Leave to Appeal Application);

(b) an application for judicial review of the HRRT decision (the Judicial Review Application); and

(c) an application to bring general proceedings in the High Court under the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, the Privacy Act 2020, and the Employment Relations Act 2000 (the General Proceedings).

• [5] The High Court struck out the proceedings on 2 September 2022.^[3] The Court:

(a) dismissed the Leave to Appeal Application as the 30-day time limit for an appeal, as set out in s 123 of the Human Rights Act, could not be extended;^[4]

(b) struck out the Judicial Review Application on the basis that there was no reasonably arguable case;^[5] and

(c) struck out the General Proceedings on the basis it was an attempt to relitigate matters that had been finally determined in the HRRT and was therefore an abuse of process.^[6]

• [6] The High Court also dismissed Dr Singh’s application for name suppression on the basis that publication is an ordinary consequence of commencing proceedings and there was nothing in the material before the Court justifying suppression.^[7]
• [7] Dr Singh did not file an appeal from the High Court decision within the required statutory timeframe (namely by 14 October 2022). However, six months later, on 6 April 2023, Dr Singh applied for an extension of time to appeal. She also applied for name suppression on 16 May 2023.
• [8] On 24 August 2023, this Court declined the application for an extension of time to appeal.^[8] It also declined the name suppression application.^[9]
• [9] Dr Singh applied to the Supreme Court for leave to appeal that decision. The Supreme Court declined to grant leave on 17 November 2023.^[10]

The costs decision

• [10] On 19 September 2023, the ADHB filed a memorandum seeking costs in respect of Dr Singh’s unsuccessful applications in this Court for an extension of time to appeal and for name suppression. The costs sought were based on a standard application on a Band A basis, totalling $2,151.
• [11] Dr Singh filed a memorandum opposing any award of costs against her on the basis that:

(a) this Court and the ADHB were aware of her financial difficulties, as evidenced by her successfully obtaining a fee waiver;

(b) this Court and the ADHB were also aware of her large debt and difficulties with employment due to physical and mental injuries; and

(c) Dr Singh could not afford to pay the costs sought by ADHB.

• [12] On 21 September 2023, Gilbert J directed that:

Costs should follow the event in the usual way. The appellant must pay costs to the respondents as set out in the respondent’s memorandum dated 19 September 2023.

Review application

• [13] Dr Singh seeks a review of Gilbert J’s direction on costs. The grounds on which a review is sought mirror those set out at [11] above.

Legal principles — costs

• [14] The Court of Appeal (Civil) Rules 2005 (the Rules) set out the general rules for the determination of costs in this Court. The Rules set out certain principles that normally apply to the determination of costs (subject to the overriding discretion of the Court). These principles include that the party who fails with respect to an appeal should pay costs to the party who succeeds.^[11]
• [15] Rule 53GA provides that costs on interlocutory applications are dealt with according to the same principles that apply to costs for an application for leave to appeal under r 53G.^[12] Rule 53G provides:

53G Principles applying to costs on application for leave to appeal

(1) If the Court refuses to give leave to appeal, the applicant will normally be liable for costs in accordance with the principle stated in rule 53A(1)(a).

(2) If the need for an application for leave to appeal arises from a default on the applicant’s part, the respondent will normally be entitled to costs with respect to the application at the time it is determined, unless the respondent’s opposition to it was in the circumstances unreasonable, in which case there will normally be no order as to costs.

...

• [16] The costs should be “assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the interlocutory application”, outlined in schedule two.^[13]

Discussion

• [17] Dr Singh’s argument rests on her claimed inability to pay an award of costs.
• [18] The general principle is that costs follow the event. On that basis Dr Singh, as the unsuccessful party, should pay costs to the ADHB. As noted above, however, the Court has an overarching discretion on costs issues. The general principle may be displaced in some, relatively rare, cases.
• [19] There is no prohibition on making a costs award against a party in financial hardship, unless demonstrated through the receipt of legal aid (which does not apply here).^[14] Indeed, rather than being absolved of liability for costs, impecunious plaintiffs or appellants are often required to provide security for costs.
• [20] Here, we seen no basis to depart from the general principle that costs should follow the event. The amount of costs sought is reasonable, reflecting the costs payable for a standard application on a Band A basis, in accordance with the time allocations set out in schedule 2 of the Rules.
• [21] In conclusion, Gilbert J did not err in awarding costs in favour of the ADHB, and we confirm his order.

Result

• [22] The application for review is declined.

Solicitors:
Simpson Grierson, Wellington for Respondent

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^[1] Dr Singh also filed an application with the Employment Relations Authority which was dismissed for lack of jurisdiction: Singh v Auckland District Health Board [2016] NZERA Auckland 382 at [14].

^[2] Singh v Auckland District Health Board HRRT 3/2016, 8 February 2018.

^[3] Singh v Auckland District Health Board [2022] NZHC 2229, reissued on 15 September 2022.

^[4] At [28].

^[5] At [46].

^[6] At [55].

^[7] At [61]–[62].

^[8] Singh v Auckland District Health Board [2023] NZCA 391 at [16].

^[9] At [19].

^[10] Singh v Auckland District Health Board [2023] NZSC 152.

^[11] Court of Appeal (Civil) Rules 2005, r 53A(1)(a).

^[12] Rule 53GA(1).

^[13] Rule 53GA(2) and (3).

^[14] Chesterfield Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7]; see also Legal Services Act 2011, s 45 which provides exceptions to the order of costs for legally aided persons.